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<br />
<br />22
<br />
<br />STANFORD LAW REVIEW
<br />
<br />[Vol. '9: Page,
<br />
<br />are entirled under the apportionment made in paragraph (a) but also the entire
<br />unapportioned surplus waters of the Colorado River~
<br />, [Answer] No. Paragraph (a) of Article JIl apportions to the upper basin 7,-
<br />500,000 acrdeet per annum. Paragraph (e) of Article III provides that the States
<br />of the upper division shall not withhold water that cannot be beneficially used.
<br />Paragraph, (f) and (g) of this article specifically lcave to further apportionment
<br />water now unapportioned. There is, therefore, no possibility of construing para-
<br />graph (d) of thi, article a' suggc:sted."
<br />
<br />To paraphrase an old song, "No, we have some bananas'" Clyde quotes
<br />Hoover again as noting further "in his answer to Question 17 that probably
<br />neither basin would particularly benefit from the provisions of Article
<br />III (e), for that paragraph 'applies only to an unreasonable or arbitrary
<br />withholding or demand.' ....
<br />Clyde's conclusions on Case 1 and Case 2 would be the same as those
<br />reached here. He then concludes that where there is excess water over the
<br />domestic and agricultural needs of the Upper Basin and where the 75-
<br />million delivery obligation has been satisfied the Upper Basin can withhold
<br />the excess water for power or carry-over storage. Clyde argues:
<br />
<br />It is harder to suppon this statement by rderence to the language in the compac[-
<br />in fact, there is no express provision to this effect. Still, on a priority basis, when
<br />the first rig'llts have been filled, secondary rights then come into play, and where
<br />the compact expressly requires the delivery of 75,000,000 acre-feet during each ten-
<br />year period it seems to me iliat there is at least a negative implication that from the
<br />apportioned water the upper basin need reIca.se no more.!I1
<br />
<br />While the issue may ultimately be resolved by litigation in the Supreme
<br />Court, in the meantime the final authority will continue to be the man who
<br />operates the storage works on the river on behalf of the United States as
<br />owner-the Secretary of the Interior. Given the fact that seven states, four-
<br />teen Senators, and an oversized platoon of Congressmen are involved, the
<br />Secretary's discretion is hardly unfettered, but, until the Supreme Court
<br />speaks, the decision is inescapably the Secretary's.
<br />In 19/i4 Secretary Udall exercised his power by opening the gates at
<br />Glen Canyon Dam to provide water for power production at Hoover Dam.
<br />Lake Powell at the time had filled only to one-half the power production
<br />level, and the order would necessarily reduce Upper Basin power revenues,
<br />which are used to pay for irrigation projects. The reaction was swift and
<br />vigorous: Ed Johnson, former Governor of Colorado and a member of the
<br />Upper Colorado River Commission, described Udall's order simply and
<br />directly as theft... Udall met with the governors of the Upper Basin states
<br />
<br />79' 6.. CoNG. REC. :3710-13 (19:33), re:pnnted in WilblU' & Ely, op. &:;1, suprtl note 62, at A3S.
<br />80. Clyde:, IUpr'tl note 72, at 119.
<br />SI. Id.at 1::17.
<br />82, Wc=stun Water Congress Ncwsle:tter, June: 23.1964.
<br />
<br />!':O\'anber 1966]
<br />
<br />in a closed meeting ~l
<br />of the meeting left In,
<br />ments of the Hoover]
<br />intended to eharge th,
<br />rrquired to be. purchas,
<br />A! the S:lme time, Ud"
<br />duccion in water use a'
<br />lha! withstood later c,
<br />!>J,ins have worked" I
<br />Hoover Dams and ha'
<br />of H.R. 4671." The titl
<br />"equitable eriteria for
<br />,...irs" on lhe Colorad.
<br />nually after comments
<br />from parties with Un;,
<br />rncro'oirs. The Secreta:
<br />the availability of wate
<br />19::2 compact, and he :
<br />(I) Water is to be
<br />$,U)' to S:ltisfy the Upp<
<br />deficiency :lfising fron
<br />uke to define "deficie:
<br />Lc-e Ferry or the interr.
<br />(2) Releases are t\
<br />Ila<in's article III (d) 0:
<br />ill running periods of I
<br />(3) After the first t
<br />I'..well is permitted as
<br />alld lII(d) water. Sucl
<br />ury 10 protect Upper
<br />ulI.ler the first two pri\
<br />(4) Water not req~
<br />II,,", a~ainst article III (
<br />P..well as follows: (i)
<br />III(e) of the 1922 com I '
<br />lhat in Lake Mead; (i
<br />10 th21 in Lake Powell
<br />nle first priority is
<br />
<br />"J. 5n Yum.. County W..l
<br />I" For the: committee pri
<br />-.J N-~io,. oJ thr Houst'
<br />.,. pc. :.., 963 (1966).
<br />
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